Gourlay and Wellar
[2018] FamCAFC 223
•19 November 2018
FAMILY COURT OF AUSTRALIA
| GOURLAY & WELLAR | [2018] FamCAFC 223 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time to file an appeal against orders made – Where the applicant has not appeared to prosecute the application – Application struck out. |
| Family Law Act 1975 (Cth) Federal Circuit Court Rules 2001 (Cth) r 16.05 |
| APPLICANT: | Ms Gourlay |
| RESPONDENT: | Mr Wellar |
| FILE NUMBER: | DGC | 1428 | of | 2012 |
| APPEAL NUMBER: | SOA | 76 | of | 2018 |
| DATE DELIVERED: | 19 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 19 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 June 2018 |
| LOWER COURT MNC: | [2018] FCCA 1709 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | In person |
Order
The Application in an Appeal filed on 23 October 2018 be struck out.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gourlay & Wellar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 76 of 2018
File Number: DGC 1428 of 2012
| Ms Gourlay |
Applicant
And
| Mr Wellar |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is an Application in an Appeal filed by Ms Gourlay (“the mother”) on 23 October 2018. That application seeks a number of orders, and I will come to the breadth of them in a moment, but reading between the lines, the primary order which the mother seeks, is an extension of time to file a Notice of Appeal against orders made by Judge Bender on 25 June 2018.
That order provided the basis for this listing today, because that is the only matter this Court can deal with. As I say, there are other orders sought in the application, but some of them frankly, and with respect to the mother, are difficult to understand, and others are not orders that can be sought in an Application in an Appeal.
There was also filed by the mother on 23 October 2018, an affidavit in support of the application, and as is required for an application to extend time, a Draft Notice of Appeal.
There has been no appearance by the mother today, but Mr Wellar (“the father”) has attended.
There has been no notification to the court by the mother in the lead up to today advising, for example, that she had difficulties in attending court, or suggesting that she wanted an adjournment. In the circumstances I had my court officer telephone the mother at the number the court holds for her, but that number went through to an answering service, for want of a better description.
As a result of the mother’s failure to attend to prosecute her application, the father seeks that the Application in an Appeal be dismissed, and I am disposed to consider making that order.
Of course, dismissing an application in these circumstances without the merits of the application being determined, will still allow the mother subsequently, if she wishes to pursue the matter, to file another application. Thus, strictly, what I would be doing today is not dismissing the application, because, to repeat, it is not being heard on the merits, but to use the proper legal terminology, I would be striking out the application.
To put this all into context.
There was a Notice of Appeal filed by the mother on 13 December 2017, appealing against orders made by Judge Bender on 15 November 2017. As is required under the Family Law Rules 2004 (Cth) (“the Rules”) a draft appeal index was also filed on 10 January 2018.
What then happened in relation to that appeal though is that appropriately, and in accordance with authority, the mother filed an Application in a Case on 2 February 2018 in the Federal Circuit Court of Australia, seeking to have the orders made on 15 November 2017 set aside, as a result of her not being present, effectively, at that hearing, and particularly when the orders were made. There is a rule in the Federal Circuit Court Rules 2001 (Cth), namely r 16.05, which allows for such an application to be made, and to repeat, the mother appropriately took that course. That effectively put the mother’s appeal on hold.
The application to set aside the orders of 15 November 2017 came before Judge Bender on 25 June 2018, and her Honour dismissed the application and made an order confirming the interim parenting orders made on 15 November 2017, and which orders were the subject of the appeal brought by the mother. Her Honour went on and made orders for the preparation of a Family Report and a psychiatric assessment, and confirmed that the matter remained listed for final hearing on 29 April 2018, which was the date given on 15 November 2017.
The effect of those orders made by her Honour were to make the appeal filed by the mother on 13 December 2017, otiose.
However, the mother was unhappy with the orders made on 25 June 2018, and when the matter came before me by way of directions on 20 September 2018, she indicated that she wished to appeal against those orders. Unfortunately for the mother, by that time, the 28 days, being the period allowed under the Rules for filing a Notice of Appeal, had expired. What then had to happen was for the mother to file an Application in an Appeal, seeking an extension of time, and one of the orders that I made on 20 September 2018, apart from dismissing the Notice of Appeal filed on 13 December 2017, was that, in the event that the mother filed an Application in an Appeal supported by affidavit, that application be listed for hearing today, and that is what occurred.
What I can say additionally about this matter, is that the grounds of appeal in the Notice of Appeal filed on 13 December 2017, as well as the grounds of appeal in the Draft Notice of Appeal which has now been presented to the court, and is the Notice of Appeal that the mother wanted to pursue if she was successful in obtaining an extension of time, are problematic, in that it is not readily apparent from those grounds of appeal what appealable error is being raised by the mother.
Today was the day when I would have, if the mother had been present, challenged her about that, and it might very well have been that her application for an extension of time would have been dismissed today on the basis that her proposed appeal lacked merit.
However, to repeat, the mother is not here, and the most I can do is strike out her application.
I also make those comments on the basis that if the mother does seek to file another application, she will need to give attention to the Draft Notice of Appeal that she presents, and in particular the grounds of appeal that she seeks to rely on, because if they are no different to what is contained in the Draft Notice of Appeal currently before the court, there is a very real prospect of that application being dismissed because there is no merit in the proposed grounds of appeal.
I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 19 November 2018.
Associate:
Date: 22 November 2018
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